2. The
constitutional validity of sub-rules (2) to (5) of Rule 16 of the Civil Service
Examination Rules (hereinafter `Rules') relating to civil services examinations
held by the Union Public Service Commission in the years 2005 to 2007 is the
subject-matter of these appeals by special leave. A 2 three Judge Bench of this
Court, by order dated 14.5.2009 has referred these cases to the Constitution
Bench as it raises an important legal question as to whether candidates
belonging to reserved category, who get recommended against general/unreserved
vacancies on account of their merit (without the benefit of any
relaxation/concession), can opt for a higher choice of service earmarked for
Reserved Category and thereby migrate to reservation category.

3.
Selection to three All India Services (Indian Administrative Service, Indian
Foreign Service and Indian Police Service) and fifteen Group `A' Services and
three Group `B' officers in various Government departments are made by the
Union Public Service Commission (hereinafter `UPSC'), by conducting Civil
Service Examinations periodically. Civil Service Examinations are held as per
the Civil Service Examinations Rules notified in regard to each examination.
The Rules for the Civil Service Examination which was to be held in 2005 by the
UPSC were published by the Department of Personnel and Training (hereinafter
`DOP&T') vide Notification dated 4.12.2004.

4. To
appreciate the issue, it will be necessary to refer to the relevant rules. The
Preamble to the Rules enumerates 21 services. Rule 1 provides that the
examination will be conducted by the UPSC in the manner prescribed in
Appendix-I to the Rules.

4.1) Rule
2 of the Rules relates to preferences and is extracted below:

"2.
A candidate shall be required to indicate in his/her application form for the
Main Examination his/her order of preferences for various services/posts for
which he/she would like to be considered for appointment in case he/she is
recommended for appointment by Union Public Service Commission.

A
candidate who wishes to be considered for IAS/IPS shall be required to indicate
in his/her application if he/she would like to be considered for allotment to
the State to which he/she belongs in case he/she is appointed to the IAS/IPS.

Note.--The
candidate is advised to be very careful while indicating preferences for
various services/posts. In this connection, attention is also invited to rule
19 of the Rules. The candidate is also advised to indicate all the
services/posts in the order of preference in his/her application form. In case
he/she does not give any preference for any services/posts, 4 it will be
assumed that he/she has no specific preference for those services. If he/she is
not allotted to any one of the services/posts for which he/she has indicated
preference, he/she shall be allotted to any of the remaining services/posts in
which there are vacancies after allocation of all the candidates who can be
allocated to services/posts in accordance with their preferences."

4.2) Rule
3 relates to number of vacancies and provision for reservation and it reads as
follows:

"3.
The number of vacancies to be filled on the result of the examination will be
specified in the Notice issued by the Commission.

Reservation
will be made for candidates belonging to the Scheduled Castes, Scheduled
Tribes, Other Backward Classes and physically disabled categories in respect of
vacancies as may be fixed by the Government."

4.3) Rule
15 provides for three examinations namely preliminary examination, main written
examination and interview test as follows:

"15.
Candidates who obtained such minimum qualifying marks in the Preliminary
Examination as may be fixed by the Commission at their discretion shall be
admitted to the Main Examination; and candidates who obtain such minimum
qualifying marks in the Main Examination 5 (written) as may be fixed by the
Commission at their discretion shall be summoned by them for an interview for
personality test:

Provided
that candidates belonging to the Scheduled Castes or Scheduled Tribes or Other
Backward Classes may be summoned for an interview for a personality test by the
Commission by applying relaxed standards in the Preliminary Examination as well
as Main Examination (Written) if the Commission is of the opinion that
sufficient number of candidates from these communities are not likely to be
summoned for interview for a personality test on the basis of the general
standard in order to fill up vacancies reserved for them."

4.4) Rule
16 lays down the manner of selection, preparation of merit list and selection
of candidates. The said rule is extracted below:

"16.(1)
After interview, the candidates will be arranged by the Commission in the order
of merit as disclosed by the aggregate marks finally awarded to each candidate
in the Main Examination. Thereafter, the Commission shall, for the purpose of
recommending candidates against unreserved vacancies, fix a qualifying mark
(hereinafter referred to as general qualifying standard) with reference to the
number of unreserved vacancies to be filled up on the basis of the Main
Examination. For the purpose of recommending Reserved Category candidates
belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes
against reserved vacancies, the Commission may relax the general qualifying 6
standard with reference to number of reserved vacancies to be filled up in each
of these categories on the basis of the Main Examination:

Provided
that the candidates belonging to the Scheduled Castes, Scheduled Tribes and the
Other Backward Classes who have not availed themselves of any of the
concessions or relaxations in the eligibility or the selection criteria, at any
stage of the examination and who after taking into account the general
qualifying standards are found fit for recommendation by the Commission shall
not be recommended against the vacancies reserved for Scheduled Castes,
Scheduled Tribes and the Other Backward Classes.

(2) While
making service allocation, the candidates belonging to the Scheduled Castes,
the Scheduled Tribes or Other Backward Classes recommended against unreserved
vacancies may be adjusted against reserved vacancies by the Govt. if by this
process they get a service of higher choice in the order of their preference.

(3) The
Commission may further lower the qualifying standards to take care of any
shortfall of candidates for appointment against unreserved vacancies and any
surplus of candidates against reserved vacancies arising out of the provisions
of this rule, the Commission may make the recommendations in the manner
prescribed in sub-rules (4) and (5).

(4) While
recommending the candidates, the Commission shall, in the first instance, take
into account the total number of vacancies in all categories. This total number
of recommended candidates shall be reduced by 7 the number of candidates
belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward
Classes who acquire the merit at or above the fixed general qualifying standard
without availing themselves of any concession or relaxation in the eligibility
or selection criteria in terms of the proviso to sub-rule (1). Along with this
list of recommended candidates, the Commission shall also declare a
consolidated reserve list of candidates which will include candidates from
general and reserved categories ranking in order of merit below the last
recommended candidate under each category. The number of candidates in each of
these categories will be equal to the number of Reserved Category candidates
who were included in the first list without availing of any relaxation or
concession in eligibility or selection criteria as per proviso to sub-rule (1).
Amongst the reserved categories, the number of candidates from each of the
Scheduled Caste, the Scheduled Tribe and Other Backward Class categories in the
reserve list will be equal to the respective number of vacancies reduced
initially in each category.

(5) The
candidates recommended in terms of the provisions of sub-rule (4), shall be
allocated by the Government to the services and where certain vacancies still
remain to be filled up, the Government may forward a requisition to the
Commission requiring it to recommend, in order of merit, from the reserve list,
the same number of candidates as requisitioned for the purpose of filling up
the unfilled vacancies in each category."

4.5) Rule
19 provides that due consideration will be given at the time of making
allocation on the results of the 8 examination to the preferences expressed by
a candidate for various services at the time of his application and the
appointment to various services will also be governed by the Rules/Regulations
in force, as applicable to the respective Services at the time of appointment.

5. The
total vacancies notified by the participating services for the Civil Service
Examination, 2005 were 457 made up of General Category : 242, OBC category :
117, Scheduled Castes : 166 and Scheduled Tribes : 32. As per Rule 16(1) and
(4), UPSC recommended 425 candidates in the first phase made up of the
following: General -210, OBC -117 (including 31 merit candidates); Scheduled
Castes -66 (including 1 merit candidate) and Scheduled Tribes -32. A
consolidated Reserve list (wait-list) was also prepared consisting of 64
candidates. The DOP&T after allocation of the candidates from the first
list, made a requisition for recommendation of candidates through the operation
of the reserve list. 26 Meritorious OBC candidates and one Meritorious
Scheduled Caste candidate recommended against unreserved vacancies, opted for 9
reserved vacancies as by that process, they got a service of higher choice in
the order of preference. If the said 27 meritorious reserved category
candidates had been considered only for service allocation against unreserved
vacancies in competition with the General Category candidates, they would have
got a service of lower choice.

Rule
16(2) enabled the meritorious candidate of any of the reservation categories to
get a service of higher preference so that he may not be placed at a
disadvantaged position vis a vis other candidates of his category.

6. The
DOP&T could therefore adjust only 5 out of the 31 Meritorious Category OBC
candidates through their merit-cum-service preference option as General
Candidates.

As a
result, the UPSC recommended under Rule 16(5) of the Rules, 27 General Category
candidates and 5 OBC candidates from the consolidated Reserve List.

7.
Certain OBC candidates in the Reserve (wait list) filed applications before the
Central Administrative Tribunal, Madras Bench, challenging Rule 16(2). It was
contended 10 that adjustment of OBC merit candidates against OBC reservation
vacancies was illegal. According to them, such candidates should be adjusted
against the general (unreserved) vacancies, as that would have allowed more
posts for OBC candidates and would have allowed the lower ranked OBC candidates
a better choice of service. They contended that more meritorious OBC candidates
should be satisfied with lower choice of service as they became general
(unreserved) candidates by reason of their better performance.

8. The
Tribunal, after interpreting amended Rule 16(2) in the light of the various
judgments of this Court, concluded that meritorious OBC candidates who were
selected on merit must be adjusted against the `General Category'.

However,
it ordered that Rule 16(2) may be applied in terms of decision of this Court in
Anurag Patel vs. U.P. Public Service Commission & Ors., (2005) 9 SCC 742,
to ensure that allocation of service is in accordance with rank-cum-preference
with priority given to meritorious candidates for service allocation.

9. The
Union of India and other aggrieved candidates preferred Writ Petitions before
the Madras High Court challenging the order of the Central Administrative
Tribunal. Some other aggrieved candidates got themselves impleaded in the said
proceedings. By the impugned order dated 20.3.2008, the High Court held Rule
16(2) as unconstitutional. Consequently, the High Court set aside the select
lists and directed the Government of India and UPSC to redo service allocation
de hors Rule 16(2).

10. The
first batch of civil appeals @ SLP [C] Nos.

13571-13572
of 2008 is filed by the Union of India against the said order dated 20.3.2008
in W.P. [C] Nos.1814 & 1815 of 2008. Other persons aggrieved by the said
order have filed the remaining civil appeals. Being aggrieved by the action of
the Union Public Service Commission and the Government of India by which
candidates in Reserved Category selected in General Category were given choice
to opt for service of higher preference in terms of Rule 16(2) of the Rules,
some of the reservation category candidates have filed Writ Petition (C)
Nos.297, 312, 336 & 416 of 2008 under Art. 32 of the Constitution of India
to declare Rule 12 16(2),(3),(4) and (5) of the Civil Services Examination
Rules, 2005 as ultra vires being inconsistent with Rule 16(1) of the said
Rules, as violative of Articles 14, 16(4) and 335 of Constitution of India,
consequential reliefs.

11. We
heard Mr. Gopal Subramanium, Learned Solicitor General of India, on behalf of
the Union of India. Ms. Indira Jaisingh, Learned ASG appeared in W.P. (C) No.
297/1008.

12. The
case of the contesting respondents is that the newly introduced system which is
different from the single list system followed earlier (prior to amendment of
CSE Rules) will undermine the rights of the Reserved Category 13 candidates to
get assigned to services of higher preference (e.g. IAS, IPS or IRS). They also
urged that this system will reduce the aggregate number of reserved candidates
who will be selected while simultaneously increasing the number of general
candidates. It also puts candidates who come through the second list at a
disadvantage in terms of seniority and promotions for rest of their career in
their respective services. By the impugned order, the High Court had vindicated
these grievances, particularly those raised by OBC candidates.

13. In
the light of the submissions made by the learned counsel appearing for
different appellants, the following questions arise for consideration:

I.
Whether the Reserved Category candidates who were selected on merit (i.e. MRCs)
and placed in the list of General Category candidates could be considered as
Reserved Category candidates at the time of "service allocation"? 14
II. Whether Rule 16 (2), (3), (4) and (5) of the CSE Rules are inconsistent
with Rule 16 (1) and violative of Articles 14, 16 (4) and 335 of the Constitution
of India? III. Whether the order of the Central Administrative Tribunal was
valid to the extent that it relied on Anurag Patel v. Uttar Pradesh Public
Service Commission and Others, (2005) 9 SCC 742 (which in turn had referred to
the judgment in Ritesh R. Sah v. Dr. Y.L.Yamul and Others, (1996) 3 SCC 253,
which dealt with reservations for the purpose of admission to post graduate
medical courses);

and
whether the principles followed for reservations in admissions to educational
institutions can be applied to examine the constitutionality of a policy that
deals with reservation in civil services.

Re:
Question I

14. The
relevant provision is Rule 16(2) of the Civil Services Examination Rules which
was amended by a notification dated 4.12.2004 issued by the Ministry of
Personnel, Public Grievances, and Pensions (DOP&T), New 15 Delhi. The
appellants' contention is that the amended Rule 16 (2) intends to rectify an
anomaly, as otherwise, the interests of the Meritorious Reserved Category
(hereinafter `MRC') candidates who have toiled hard to qualify as per the
general qualifying standard would be jeopardized. Such candidates could find
themselves in a position where Reserved Category candidates who are less
meritorious than them can possibly secure posts in a service of a higher
preference. The Union Government contends that the object of amending Rule 16
(2) is to ensure that such an adverse incongruous position does not arise for
more meritorious candidates.

15. Mr.
Gopal Subramanium, the Learned Solicitor General of India, has brought forth
three implications and repercussions of the amended Rule 16 once it comes into
operation:

(i) It
affords a Meritorious Reserved Candidate the benefit of reservation insofar as
Service Allocation is concerned. In other words, if such a Meritorious Reserved
Candidate although entitled to a post in the General listis able to secure a
better (or more preferred) post in the 16 Reserved List, Rule 16 (2) comes to
his aid, and he is able to secure the better post. This preserves and protects
inter se merit amongst the Reserved Candidates.

(ii) When
Rule 16 (2) enables a Meritorious Reserved Candidate to secure a post in the
Reserved Category, that Candidate is to be treated as a Reserved Candidate
(consistent with his Reserved Category status as per the application form).

(iii)
Once Rule 16 (2) is operated, the General post that would otherwise have been
available to the Meritorious Reserved Candidate is now filled up by a (Wait
Listed) General Candidate.

The
Respondents have objected to the effect of Rule 16 (2) in so far as the second
and third aspects are concerned. They have no grievance with respect to the
first aspect. They contend that when an MRC candidate is entitled to a General
Merit slot, chooses to opt for a slot earmarked for a reservation category the
result should be a mutual exchange between the meritorious reserved candidate
and the reserved candidate. The MRC candidate will carry the tag of a general
candidate even when he occupies the reservation post and the occupant of the
reservation post will migrate to the general merit slot vacated by the MRC
candidate. If the MRC candidate migrating to reservation 17 category slot is
counted as a reservation candidate, to that extent there will be a reduction in
the posts meant for reservation category candidates.

16. The
Civil Services Examination conducted by Union Public Service Commission (UPSC)
has three stages:

Preliminary
Examination, Main Examination, and Interview.

The
candidates appearing in the Examination have to render information in the
application form indicating their status as General, Other Backward Class
(OBC), Scheduled Castes (SC) or Scheduled Tribes (ST). Moreover, at a later
stage the candidates have to furnish their preferences of services in which
they have to indicate their choices in the event of qualification. This has
been spelt out in Rule 2 of the CSE Rules.

17. In
support of their contentions, the respondents have relied upon the following
observations of this Court in Union of India v. Satya Prakash, (2006) 4 SCC
550, (at paras. 18, 19 and 20):

18
"18. By way of illustration, a Reserved Category candidate, recommended by
the Commission without resorting to relaxed standard (i.e. on merit) did not
get his own preference 'say IAS' in the merit/open category. For that, he may
opt a preference from the Reserved Category. But simply because he opted a
preference from the Reserved Category does not exhaust quota of OBC category
candidate selected under relaxed standard. Such preference opted by the OBC
candidate who has been recommended by the Commission without resorting to the
relaxed standard (i.e. on merit) shall not be adjusted against the vacancies reserved
for the Scheduled Castes, Scheduled Tribes and other Backward Classes. This is
the mandate of proviso to Sub-rule 2 of Rule 16.

19. In
other words, while a Reserved Category candidate recommended by the Commission
without resorting to the relaxed standard will have the option of preference
from the Reserved Category recommended by the Commission by resorting to
relaxed standard, but while computing the quota/percentage of reservation
he/she will be deemed to have been allotted seat as an open category candidate
(i.e. on merit) and not as a Reserved Category candidate recommended by the
Commission by resorting to relaxed standard.

20. If a
candidate of Scheduled Caste, Scheduled Tribe and other Backward Class, who has
been recommended by the Commission without resorting to the relaxed standard
could not get his/her own preference in the merit list, he/she can opt a
preference from the Reserved Category and in such process the choice of
preference of the Reserved Category recommended by resorting to the relaxed
standard will be pushed further down but shall be allotted to any of the
remaining services/posts in which there are vacancies after allocation of all
the candidates who can be 19 allocated to a service/post in accordance with
their preference."

18. The
decision in Satya Prakash was rendered prior to the amendment of Rule 16(2) and
the learned judge had not contemplated the present version of the rule. Hence,
this decision is clearly distinguishable from the present case.

Prior to
the decision in Satya Prakash's case (supra.), the practice had been that a
single list of successful candidates was released in respect of all the
vacancies. At that time, MRC candidates were initially treated as general
candidates and had Rule 16(2) not been amended, a single list would have been
released for all 457 posts which were vacant in the year under consideration.
Accordingly, such a list would have contained 242 General candidates (including
32 MRC candidates). There would have been a separate list for 117 OBCs, 66 SCs
and 32 STs (excluding MRC candidates).

When the
MRC Candidates were shifted from the general list to the reserved list, there
was an ouster of the relatively lower ranked Reserved Category candidates who
were initially selected as part of the reserved list. For example when 27 MRC
candidates (26 belonging to OBC and 1 SC) 20 would have moved from the General
List to the Reserved List, 26 OBC and 1 SC candidates who were ranked lower
among the 117 OBC and 66 SC candidates initially selected in the Reserved
Category, would have been ousted.

19. The
unamended as well as amended Rule 16 (2) are as follows:Rule 16 (2) in the old
Civil Rule 16 (2) in the current Service Examination Rules Civil Service
Examination Rules (vide notification dated 4.12.2004) The candidates belonging
to While making service any of the Scheduled Castes allocation, the candidates
or Scheduled Tribes or the belonging to the Scheduled Other Backward Classes
Castes, the Scheduled Tribes may, to the extent of the or Other Backward
Classes number of vacancies recommended against reserved for the Scheduled
unreserved vacancies may be Castes and the Scheduled adjusted against reserved
Tribes and the Other vacancies by the Backward Classes be Government, if by
this recommended by the process, they get a service of Commission by a relaxed
higher choice in the order of standard, subject to the their preference.

fitness
of these candidates for selection to services.

Provided
that the candidates belonging to the Scheduled Castes and the Scheduled Tribes
and the Other Backward Classes who have been recommended by the Commission
without 21 resorting to the relaxed standard referred to in this sub-rule shall
not be adjusted against the vacancies reserved for the Scheduled Castes and the
Scheduled Tribes and the Other Backward Classes.

20. The
UPSC declares results in two stages and the same was done in the year 2006. As
per the final result of CSE 2005, out of 457 vacancies, 425 candidates were
recommended for appointment which included 210 General, 117 OBC, 66 SC and 32
ST candidates. The UPSC was maintaining a consolidated reserve list, i.e. a
Wait List of 64 candidates (consisting of 32 general, 31 OBC and 1 SC
candidate) ranking in order of merit below the last recommended candidate under
each of these categories as per Rule 16 (4) and (5) of the CSE Rules, 2005.
Admittedly, 31 OBC category candidates who had qualified in the General Merit
List were not included in the General Category and instead they were part of
117 OBC category candidates selected as part of the Reserved Category.

Hence, an
equal number of OBC category candidates who were ranked lower in the order of
merit as part of the 22 Reserved Category seats were initially ousted. The
purpose of including those OBC category candidates who had qualified in the General
Category was to give them a higher preferred service from the vacancies under
the OBC category. The CSE rules were accordingly amended to allow for such a
migration.

21. The
Learned Solicitor General has described in detail how along with the list of
recommended candidates, the UPSC also prepares a Consolidated Reserve List.
This Consolidated Reserve List is a Wait List for filling the remaining 32
vacancies. It contained two parallel sub-lists:

Wait List
A consisting of 32 General Candidates and Wait List B consisting of 32 Reserved
Candidates (31 OBCs and 1 SC) the 1 SC candidate would be positioned in the
Wait List at the same position in which the 1 SC candidate was placed amongst
the 32 MRC candidates. Two Wait Lists are prepared so that depending on how the
32 MRCs are placed and in whatever contingency whether they are adjusted
against General or Reserved Posts there will remain a sufficient number of
candidates (both general and reserved) 23 to be adjusted against the balance 32
posts in the second stage.

22. When
Department of Personnel and Training (DoP&T) received the Lists, the 32 MRC
candidates were added to the list of 210 General candidates but at the same
time they were positioned in the reserved lists of 117 OBC candidates and 66 SC
candidates as well. The UPSC list counts the MRC candidates as part of the
Reserved List for the purpose of ascertaining the reservation quota in terms of
percentage.

The
rationale cited for this method is that for the purpose of service allocation,
the DOP&T initially counts the MRC candidates in both the General and the
Reserved Lists.

These
candidates are then placed against the better of the two services available to
them under either of these categories which is of course based on their order
of preference. A Service is allocated by moving downwards in the merit list in
a serial manner, with each candidate in the merit list getting the best
available option as per his/her preference.

23. The
respondents have also placed strong reliance on this Court's decision in Ritesh
R. Sah v. Dr. Y.L.Yamul (1996) 3 SCC 253). The question in that case was
whether a Reserved Category candidate who is entitled to be selected for
admission in open competition on the basis of his/her own merit should be
counted against the quota meant for the Reserved Category or should he be
treated as a general candidate. The Court reached the conclusion that when a
candidate is admitted to an educational institution on his own merit, then such
admission is not to be counted against the quota reserved for Schedule Castes
or any other Reserved Category. However, it is pertinent to note that this
decision was given in the context of admissions to medical colleges in which
G.B. Pattanaik J. (as His Lordship then was) had held:

"17.
...In view of the legal position enunciated by this Court in the aforesaid
cases the conclusion is irresistible that a student who is entitled to be
admitted on the basis of merit though belonging to a Reserved Category cannot
be considered to be admitted against seats reserved for Reserved Category. But
at the same time the provisions should be so made that it will not work out to
the disadvantage of such candidate and he may not be placed at a more
disadvantageous position than the other less meritorious Reserved Category 25
candidates. The aforesaid objective can be achieved if after finding out the
candidates from amongst the Reserved Category who would otherwise come in the
open merit list and then asking their option for admission into the different colleges
which have been kept reserved for Reserved Category and thereafter the cases of
less meritorious Reserved Category candidates should be considered and they
will be allotted seats in whichever colleges the seats should be available. In
other words, while a Reserved Category candidate entitled to admission on the
basis of his merit will have the option of taking admission to the colleges
where a specified number of seats have been kept reserved for Reserved Category
but while computing the percentage of reservation he will be deemed to have
been admitted as an open category candidate and not as a Reserved Category
candidate..."

24. There
is an obvious distinction between qualifying through an entrance test for
securing admission in a medical college and qualifying in the UPSC examinations
since the latter examination is conducted for filling up vacancies in the
various civil services. In the former case, all the successful candidates
receive the same benefit of securing admission in an educational institution.
However, in the latter case there are variations in the benefits that accrue to
successful candidates because they are also competing amongst themselves to
secure the service of their choice.

26 For
example, most candidates opt for at least one of the first three services [i.e.
Indian Administrative Service (IAS), Indian Foreign Service (IFS) and Indian
Police Service (IPS)] when they are asked for preferences. A majority of the
candidates prefer IAS as the first option. In this respect, a Reserved Category
candidate who has qualified as part of the general list should not be
disadvantaged by being assigned to a lower service against the vacancies in the
General Category especially because if he had availed the benefit of his Reserved
Category status, he would have got a service of a higher preference. With the
obvious intention of preventing such an anomaly, Rule 16 (2) provides that an
MRC candidate is at liberty to choose between the general quota or the
respective Reserved Category quota.

With
respect to his position in the General Merit List, there were General Category
IAS vacancies available, and he occupied the 17th out of 45 General vacancies
in the IAS.

Thus, he
did not need the assistance of Rule 16(2) to get a post in a more preferred
service since he was adjusted 27 against the General List. Accordingly, he
opted out of the Reserved Category. This was in line with the proposition that
when a candidate is entitled to a certain post on his merit alone, he should
not be counted against the reserved quota. In contrast, another candidate who
was an MRC (OBC) candidate obtained 64th Rank overall in the CSE 2005. At his
position in the General List, he was entitled to a post in the IPS since the
General Category IAS vacancies had been exhausted by candidates above him in
the General merit list. However, IPS was his second preference while IAS was
his first preference. If he were to be considered against the vacancies in the
Reserved Category, he would be entitled to a post in the IAS because the 22 OBC
IAS vacancies had not been exhausted at that point of time. By the operation of
Rule 16 (2), he was able to secure a post in the IAS, while retaining his
Reserved Status. Having availed of this benefit, he was adjusted against the
Reserved (OBC) category.

26.
Learned Counsel for respondent questioned the rationale of declaring the CSE
results in two phases in order to support the proposition that even if MRC
candidates are given a service of a higher preference, they should not oust 28
lower-ranked Reserved Category candidates. However, Rule 16 (2) should not be
interpreted in an isolated manner since it was designed to protect the
interests of MRC candidates.

MRC
candidates having indicated their status as SC/ST/OBC at the time of
application, begin their participation in the examination process as Reserved
Candidates.

Having
qualified as per the general qualifying standard, they have the additional
option of opting out of the Reserved Category and occupying a General Post.
Where, however, they are able to secure a better post in the Reserved List
their placement in the General List should not deprive them of the same. In
that respect, the adjustment referred to in Rule 16 (2) does not, in fact,
denote any change in the status of the MRC from General to Reserved. To the
contrary, it is an affirmation of the Reserved Status of the MRC candidate.

Rule
16(2) exists to protect this Reserved Status of the MRC candidates.

27. We
must also take note of the fact that when MRC candidates get adjusted against
the Reserved Category, the same creates corresponding vacancies in the General
Merit List (since MRC candidates are on both lists). These vacan29 cies are of
course filled up by general candidates. Likewise, when MRC candidates are
subsequently adjusted against the General Category [i.e. without availing the
benefit of Rule 16 (2)], the same will result in vacancies in the Reserved
Category which must in turn be filled up by Wait Listed Reserved Candidates.
Moreover, the operation of Rule 16 does not result in the ouster of any of the
candidates recommended in the first list. Many of the wait-listed candidates
are accommodated in the second stage, and the relatively lower ranked
wait-listed candidates are excluded. It is pertinent to note that these
excluded candidates never had any absolute right to recruitment or even any
expectation that they would be recruited. Their chances depend on how the MRC
candidates are adjusted.

28. In
the impugned judgment, the High Court had reasoned that allocation to a
particular post cannot be distinguished from allocation to a service for the
purpose of reservation. However, the High Court had not considered the fact
that in the CSE examination, the candidates are not competing for similar posts
in one service but are instead competing for posts in different services that correspond
to vary30 ing preferences. Furthermore, the impugned judgment did not
appreciate the possibility that when an SC/ST/OBC candidate qualifies on merit
(i.e. without any relaxation/concession) there can be a situation where a lower
ranked OBC candidate gets allotted to a better service in comparison to a
higher ranked SC/ST/OBC candidate simply because the higher ranked OBC
candidate performed well enough to qualify in the General Category. Such a situation
is anomalous. As we have already discussed, the High Court's reliance on the
decision of this Court in Union of India v. Satya Prakash, (supra.), is not
tenable since it dealt with the effect of Rule 16 (2) as it existed prior to
the amendment notified on 4.12.2004.

29. A
significant aspect which needs to be discussed is that the aggregate
reservation should not exceed 50% of all the available vacancies, in accordance
with the decision of this Court in Indra Sawhney v. Union of India, (1992) Supp
3 SCC 217. If the MRC candidates are adjusted against the Reserved Category
vacancies with respect to their higher preferences and the seats vacated by
them in the General Category are further allotted to other Reserved 31 Category
candidates, the aggregate reservation could possibly exceed 50 % of all of the
available posts.

30. In
Post Graduate Institute of Medical Education and Research v. Faculty
Association, (1998) 4 SCC 1, G.N. Ray J. had clearly stated that the upper
ceiling of 50% reservations should not be breached:

"32.
Articles 14, 15 and 16 including Articles 16(4), 16(4-A) must be applied in
such a manner so that the balance is struck in the matter of appointments by
creating reasonable opportunities for the reserved classes and also for the
other members of the community who do not belong to reserved classes. Such a
view has been indicated in the Constitution Bench decision of this Court in
Balaji case, Devadasan case and Sabharwal case. Even in Indra Sawhney case the
same view has been held by indicating that only a limited reservation not
exceeding 50% is permissible. It is to be appreciated that Article 15 (4) is an
enabling provision like Article 16 (4) and the reservation under either
provision should not exceed legitimate limits. In making reservations for the
backward classes, the State cannot ignore the fundamental rights of the rest of
the citizens. The special provision under Article 15 (4) [sic 16 (4)] must
therefore strike a balance between several relevant considerations and proceed
objectively. In this connection reference may be made to the decisions of this
Court in State of A.P. v. U.S.V. Balram and C.A. Rajendran v. Union of India.
It has been indicated in Indra Sawhney that clause (4) of Article 16 is not in
the nature of an exception to clauses (1) and (2) of Article 16 but an instance
of classification permitted by clause (1). It has 32 also been indicated in the
sand decision that clause (4) of Article 16 does not cover the entire field
covered by clauses (1) and (2) of Article 16.

In Indra
Sawhney case this Court has also indicated that in the interests of the
backward classes of citizens, the State cannot reserve all the appointments
under the State or even a majority of them. The doctrine of equality of
opportunity in clause (1) of Article 16 is to be reconciled in such a manner
that the latter while serving the cause of backward classes shall not
unreasonably encroach upon the field of equality."

31. In
State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, the same proposition was
enunciated by A.N. Ray, C.J.

who had
held:

"26.
The respondent contended that apart from Article 16 (4) members of scheduled
castes and scheduled tribes were not entitled to any favoured treatment in
regard to promotion. In T.Devadasan v. Union of India reservation was made for
backward classes. The number of reserved seats which were not filled up was
carried forward to the subsequent year. On the basis of "carry forward"
it was found that such reserved seats might destroy equality. To illustrate, if
18 seats were reserved and for two successive years the reserved seats were not
filled and in the third year there were 100 vacancies the result would be that
54 reserved seats would be occupied out of 100 vacancies. This would destroy
equality. On that ground "carry forward" principle was not sustained
in Devadasan's case (supra). The same view was taken in the case of M.R.Balaji
v. State of Mysore. It was said that not more than 50 per 33 cent should be
reserved for backward classes.

This
ensures equality. Reservation is not a constitutional compulsion but is
discretionary according to the ruling of this Court in Rajendran's case
(supra)."

32.
Therefore, we are of the firm opinion that MRC candidates who avail the benefit
of Rule 16(2) and are eventually adjusted in the Reserved Category should be
counted as part of the reserved pool for the purpose of computing the aggregate
reservation quotas. The seats vacated by MRC candidates in the general pool
will therefore be offered to General Category candidates. This is the only
viable solution since allotting these General Category seats (vacated by MRC
candidates) to relatively lower ranked Reserved Category candidates would
result in aggregate reservations exceeding 50% of the total number of available
seats. Hence, we see no hurdle to the migration of MRC candidates to the
Reserved Category.

34 Re:
Question II

33. We
have extracted Rule 16 of the Civil Service Examination Rules, as per
notification dated 4.12.2004 issued by the Ministry of Personnel, Public Grievances
and Pensions (Department of Personnel and Training), New Delhi. A perusal of
the rule discloses the following: Rule 16 (1) mandates that after the interview
phase, the candidates will be arranged in the order of merit on the basis of
aggregate marks obtained in the main examination. Later on, the UPSC shall fix
a qualifying mark for recommending the candidates for the unreserved vacancies.
Proviso to sub-rule (1) lays down that a candidate who belongs to the SC, ST
& OBC categories and who has qualified on his own in the merit list shall
not be recommended against the vacancies reserved for such classes if such
candidate has not availed of any of the concessions or relaxations in the
eligibility or the selection criteria. The other sub-rules provide as to how
Meritorious Reserve Category candidates are to be adjusted and once they get
services of their 35 preference after availing the benefit of their reserved
status (as SC, ST, OBC or any other applicable category), the candidates whose
names are in the consolidated reserve lists are to be subsequently adjusted.
The consolidated wait list includes the candidates from General Category and
Reserved Category. If an MRC candidate who belongs to OBC category has availed
the benefit of his status for better service allocation then the seat vacated
by him will go to a General Category candidate. If he chooses not to avail the
benefits of special status then he would be counted in General Category and the
seat vacated by him in the Reserved Category will automatically go to a
candidate who belongs to the same Reserved Category.

34. As
per the submissions made before this Court, in the year 2005, 27 MRC candidates
were adjusted against Reserved Category and 5 MRC candidates were adjusted in
General Category. As already explained, the current process entails that a
Reserved Candidate, although having done well enough in the examination to have
qualified in the open category, does not automatically rescind his/her right to
a 36 post in the Reserved Category. Furthermore, Rule 16(2) operates to
recognize the inter se merit amongst the Reserved Category Candidates. The two
stage process is designed in a manner that no person included in the first
recommended list is subsequently eliminated. However, since the wait list
contains more candidates than available posts, it is inevitable that some
persons in the wait list will necessarily be excluded. Such exclusion is on the
basis of merit and the aggrieved parties were never promised a post.

35. The
following chart presented by the Learned Solicitor General explains how service
allocation has been done for the years 2005, 2006 and 2007:

Similarly,
for the years 2006 and 2007, the UPSC is maintaining a Consolidated Reserve
List of 116 and 192 candidates respectively, but DOP&T has not sent any
requisition for the second list as per Rule 16(5).

36. In
State of Bihar v. M .Neeti Chandra, (1996) 6 SCC 36, this Court was confronted
with broadly analogous issues. In that case, the Controller of Examinations,
Health 38 Services, Government of Bihar, Patna had issued the prospectus for a
competitive examination for admission to post graduate courses in Patna Medical
College (Patna), Darbhanga Medical College (Laheria Sarai), Rajendra Medical
College (Ranchi) and Mahatma Gandhi Medical College (Jamshedpur) for the year
1992. The prospectus contained the following provisions with respect to
reservations:

"The
reservation of seats for various categories shall be as per the decision of the
government. There will be no economic criteria for the reservation.

39
"As there is provision in direct appointment to the effect that the
candidates belonging to reserved classes, who are selected on the basis of
merit would not be adjusted against reserved seats, similarly maintaining the
same arrangement here also the candidates selected on the basis of merit for
admission into professional training institutes would not be adjusted against
the reserved quota for the candidates of the reserved classes".

The High
Court of Patna which considered the matter devised a method to remove the
anomalies. It initiated a process of allotment of seats by which the reserved
seats were offered first (i.e. before the general seats are filled first) to
the candidates of the Reserved Category on merit, and after all the reserved
seats were so filled up, all other qualifying candidates of the Reserved
Category were `adjusted' against open seats in the General Category along with
the general merit candidates and offered seats on merit-cum-choice basis.
Furthermore, the High Court made arrangement for the Reserved Category of girls
who could get seats under the reservation for girls or under those reserved for
SCs /STs etc., thereby retaining a choice between one of the two reservations. The
girls in excess of the reserved vacancies could seek admission on general 40
merit. The High Court held that by this procedure all the anomalies in the
procedure for allotment of seats could be removed. In the meantime, another
resolution was passed which was supposed to rectify the anomalies arising out
of the operation of the previous Resolution. The Resolution dated 22-3-1994
provided that casual vacancies occurring at a later stage in the General
Category or Reserved Category would be filled from amongst the candidates of
the respective category on merit and in that process no candidate would be
allotted a college/course below the choice of the college or course already
allotted. The High Court observed that the resolution takes care of the
grievances of the candidates who by reason of readjustment at the State for
filling up subsequent vacancies often had to lose the college/course of their
choice but it did not address the anomaly that arises when preparing the main
merit list as per Resolution No. 20.

State of
Bihar moved this Court in appeal against the judgment of the Patna High Court
and the main ground was that if the method suggested by the High Court was 41
followed, all students of Reserved Category who had secured the minimum marks
would have to be admitted even though there may not be adequate number of
vacancies for them.

A.M.
Ahmadi, C.J. pronounced this contention to be very genuine and laid down:

"10.
Let us take a situation in which in a particular Reserved Category there are x
number of seats but the candidates qualifying according to criteria fixed for
that category are x+5 with the best among them also qualifying on merit as
general candidates. According to the arrangement made by Circular No. 20, the
first candidate gets a choice along with the General Category candidate but
being not high enough in the list, gets a choice lesser than what he could
secure in the Reserved Category to which he was entitled.

The x
number of seats could then be filled up with the four qualifying candidates
being denied admission for want of seats. This would have been harsh for the
best candidate as well as violative of Articles 14 and 16 of the Constitution.

On the
other hand, if the direction of the High Court is followed, the first x number
of candidates get seats according to merit against the reserved seats but the
remaining will also have to be `adjusted' against the open seats for regular
candidates. These will be those who are not qualified according to general
merit criteria and so will necessarily displace 5 general candidates who would
be entitled to seats on merit.

11. In a
particular year, the number of such candidates may be much larger and thus the
method evolved by the High Court may create 42 much hardship. The method will
also not be in tune with the principles of equality. Hence the method evolved
by the High Court will have to be struck down.

12. If
however, the word `adjusted 'is read to mean considered along with the general
merit list candidates, it will lose much of its value. As per the above
illustration, the 5 candidates qualifying on Reserved Category criteria having
not secured enough marks according to general criteria, cannot, at all be
allotted any seat in the General Category.

13. At
the same time, as pointed out above, all is not well with the Government
Circular No.20 as it operates against the very candidates for whom the
protective discrimination is devised. The intention of Circular No. 20 is to
give full benefit of reservation to the candidates of the reserved.

However,
to the extent the meritorious among them are denied the choice of college and
subject which they could secure under the rule of reservation, the circular cannot
be sustained. The circular, therefore, can be given effect only if the Reserved
Category candidate qualifying on merit with general candidates consents to
being considered as a general candidate on merit-cum choice basis for allotment
of college/institution and subject."

37.
Learned Counsel on behalf of the petitioner in W.P.(C) No. 297 of 2008 has
relied upon the following observations of Jeevan Reddy J., in Indra Sawhney v.
Union of India (supra.) (para 811) :

43
"811. ...it is well to remember that the reservations under Article 16 (4)
do not operate like a communal reservation. It may well happen that some
members belonging to, say, Scheduled Castes get selected in the open
competition field on the basis of their own merit; they will not be counted
against the quota reserved for Scheduled Castes; they will be treated as open
competition candidates."

The said
observations are not of any assistance as no MRC candidate occupying a General
Category slot is being counted against the quota for the Reserved Category. For
example those MRC candidates belonging to the OBC category who cut across the
general qualifying standard and are appointed to general posts are not being
counted within the 27% quota earmarked for OBCs. However, MRC candidates who
retain their reserved status and avail of the benefit of Rule 16 (2) to occupy
a reserved post are counted against the reservation quota. When MRC candidates
do not choose to accept the General Category slot available to them on account
of their merit, but opt to occupy a slot reserved for reservation category
candidates, because that post is more attractive, then counting him/ her
against reservation 44 quota will not violate the law laid down in Indra
Sawhney (supra.).

and
"proportional equality". Proportional equality is equality "in
fact" whereas "formal equality" is equality "in law".
Formal equality exists in the rule of law. In the case of proportional equality
the State is expected to take affirmative steps in favour of disadvantaged
sections of society within the framework of liberal democracy. Egalitarian
equality is proportional equality."

39.
Article 16 (4) of the Constitution provides that nothing in Article 16 shall
prevent the State from making any provision for the reservation of appointments
or posts in favour of any backward classes of citizens which, in the opinion of
the State, is not adequately represented in the services under the State.
Article 16(4) empowers the State to initiate measures in order to protect and
promote the interests of backward classes (OBC, SC & ST). The impugned
measures in no way offend the equality clause since this particular clause was
inserted to safeguard the concerns of certain classes and shield their
legitimate 45 claims in the domain of public employment. On behalf of the
respondents in the appeals, it was submitted Rules 16 (2), (3), (4) & (5)
infringes Article 16(4). We do not accept this proposition since Rule 16 (2)
and the subsequent sub-rules merely recognize and advance inter se merit among
the Reserved Category candidates in the manner that has been demonstrated
before us by Learned Solicitor General.

40. Therefore,
Rule 16 protects the interests of a Reserved Category candidate selected in the
general (unreserved) category by giving him the option either to retain his
position in the open merit category or to be considered for a vacancy in the
Reserved Category, if it is more advantageous to him/her. The need for
incorporating such a provision is to arrest arbitrariness and to protect the
interests of the Meritorious Reserved Category candidates. If such rule is
declared redundant and unconstitutional vis-`-vis Article 14, 16 and 335 then
the whole object of equality clause in the Constitution would be frustrated and
the MRC candidates selected as per the general qualifying standard would be
disadvantaged since the candidate of his/her 46 category who is below him/her
in the merit list, may by availing the benefits of reservation attain a better
service when allocation of services is made. Rule 16 in essence and spirit
protects the pledge outlined in the Preamble of the Constitution which
conceives of equality of status and opportunity.

Re:
Question III

41.
Central Administrative Tribunal, Chennai Bench in O.A. No. 690 of 2006 and 775
of 2006 had given the following directions -:

"(i)
The impugned Rule 16 (2) is declared as valid so long as it is confined to
allocation of services and confirms to the ratio of Paras 4 to 6 of Anurag
Patel order of the Hon'ble Apex Court.

(ii) The
Supplementary List issued by the second respondent to the first respondent
dated 3.4.2007 is set aside. This would entail issue of a fresh supplementary
result from the reserved list of 64 in such a way that adequate number of OBCs
are announced in lieu of the OBCs who have come on merit and brought under
General Category. The respondents are directed to rework the result in such a way
the select list for all the 457 candidates are announced in one lot providing
for 242-general, 117 OBC, 57 SC and 41 ST and also ensure that the candidates
in OBC, SC & ST who come on merit and without availing any 47 reservation
are treated as general candidates and ensure that on equal number of such
reserved candidates who are of merit under General Category, are recruited for
OBC, SC & ST respectively and complete the select list for 457.

Having
done this exercise, the respondents should apply Rule 16 (2) to ensure that
allocation of the service is in accordance with rank-cumpreference with
priority given to meritorious reserved candidates for service allocation by
virtue of Rule 16 (2) which is as per para 5 of Anurag Patel order. The entire
exercise, as directed above, should be completed as per the order.

(iii)
Applying the ratio of Anurag Patel decision of Hon'ble Apex Court (Paras 6
& 7), if there is need for re-allocation of services, the respondents will
take appropriate measures to that extent and complete this process also within
two months from the date of receipt of a copy of this order."

The CAT
had also issued the following direction as to how the results of the UPSC
examinations (2005) should have been announced:

"52.
If the UPSC had followed the decision of the Hon'ble Apex Court cited supra and
released the select list in one go for all the 457 vacancies then it would have
ensured that the select list contained not only 117 OBCs but also an additional
number of OBC candidates by this number, in additional to 117 under 27%
reservation, while simultaneously be number of general candidates recruited
will be less to the extent of OBCs recruited on merit and included 48 in the
general list in the result of Civil Services Examination, 2005. Once this order
is met, the successful candidates list will include 242 candidates in the
General Category which is inclusive of all those Reserved Category candidates
coming on merit plus 117 OBC, 57 SC and 41 ST exclusively from these respective
reserved categories by applying relaxed norms for them.. If such a list is
subjected to Rule 16(2) of Civil Services Examination, 2005 in present form for
making service allocation only and then services are allotted based on Rule
16(2) in this context, then the announcement of recruitment result and
allocation services will be both in accordance with law as per various
judgments the Hon'ble Apex Court and in accordance with the extent orders
issued by the Respondent No.1 and also in keeping with spirit of Rule 16 (2) so
that, the meritorious reserved candidates get higher preference service as
compared to their lower ranked counter parts in OBC, ST,SC. In doing so, the
respondents also would notice that the steps taken by them in accordance with
the Rules 16 (3)(-)(5) are redundant once they issue the result of recruitment
in one phase, instead of two as they have become primary cause for the
litigation and avoidable confusion in the minds of the candidates seeking
recruitment."

42. We
may refer to the brief facts in Anurag Patel v. Uttar Pradesh Public Service
Commission, (supra.), referred to by the Tribunal. In the year 1990, the Uttar
Pradesh Public Service Commission [hereinafter `UPPSC') conducted a combined
State Services/Upper Subordinate 49 Services examination for selection to
various posts such as Deputy Collectors in U.P. Civil (Executive) Services,
Deputy Superintendent of Police in U.P. Police Services, Treasury
Officers/Account Officers in U.P. Finance and Accounts Services, Sales Tax
Officers, Assistant Regional Transport Officers, District Supply Officers and
various other posts.

Pursuant
to the notification issued by the UPPSC, a large number of candidates appeared
for selection. The UPPSC published the list of selected candidates in August,
1992.

Altogether
358 posts in various categories were filled up.

The
candidates belonging to the Backward Classes were entitled to get reservation
in selection in respect of 57 posts in various categories, out of a total
number of 358 posts.

The posts
in each category of service were filled up by choice of the candidate and the
person who secured higher position in the merit list opted for U.P. Civil
(Executive) Service and those who could not get the higher and important
category of service had to be satisfied with posts in services of lesser
importance. In each category of service, posts were reserved for SCs/STs,
Backward Classes and handicapped persons etc. The UPPSC treated the candidates
50 belonging to SC/ST and Backward Classes who got selection to the seats
(posts) earmarked for general candidates as candidates in the General Category
and allotted them to various services depending upon the rank secured by them
in the select list. SC/ST and BC Candidates, who got lower rank in merit lists
of general category candidates got posting in lesser important services.

However,
the SC/ST and BC Candidates who got selected to posts reserved in each category
even though they secured lesser rank in the whole list got appointed to
reserved posts in each category. This mode of appointments caused serious
injustice to candidates who initially applied in the Reserved Category, yet
they got selected to the general seats (posts) as they were meritorious and
were entitled to get selected along with the general candidates. However, their
merit and ability did not pay any dividends as they got appointment only to
lesser important posts. This Court held:

"4.
... The authorities should have compared the candidates who are to be appointed
on general merit as also candidates who are to be appointed as against the
reserved vacancies and while making appointments the inter se merit of the
reserved candidates should have been considered and they must have been given
the option 51 treating each service separately. As this exercise was not
followed, less meritorious candidates got appointment to higher posts whereas
more meritorious candidates had to be satisfied with posts of lower category.

5. ...in
the instant case, as noticed earlier, out of 8 petitioners in Writ Petition No.
22753 of 1993, two of them who had secured Ranks 13 and 14 in the merit list,
were appointed as Sales Tax Officer II, whereas the persons who secured Ranks
38, 72 and 97, ranks lower to them, got appointment as Deputy Collectors and
the Division bench of the High Court held that it is a clear injustice to the
persons who are more meritorious and directed that a list of all selected
Backward Class candidates shall be prepared separately including those
candidates selected in the General Category and their appointments to the posts
shall be made strictly in accordance with merit as per the select list and
preference of a person higher in the select list will be seen first and the
appointment given accordingly, while preference of a person lower in the list
will be seen only later. We do not think any error or illegality in the
direction issued by the Division Bench of the High Court.

6. If these
candidates who got selection in the General Category are allowed to exercise
preference and then are appointed accordingly the candidates who were appointed
in the reserved categories would be pushed down in their posts and the
vacancies thus left by the General Category candidates belonging to Backward
Classes. There will not be any change in the total number of posts filled up
either by the General Category candidates or by the Reserved Category
candidates."

43. The
decision in Anurag Patel (supra.) rectified the anomaly which had occurred
since the U.P.P.S.C. had allotted services of lower preference to the
candidates of backward classes who were meritorious enough to qualify as per
the criteria laid down for General Category candidates.

Such meritorious
candidates were disadvantaged on account of qualifying on merit which was
patently offensive to the principles outlined in Articles 14 and 16 of the
Constitution.

This
Court had reached such conclusion to ensure that allocation of service is in accordance
with the rank-cumpreference basis with priority given to meritorious candidates
for service allocation.

44. The
decision in Anurag Patel (supra.) in turn referred to the earlier decision in
Ritesh R. Sah v. Dr. Y.L.Yamul and Others (supra.). However, we have already
distinguished the judgment in Ritesh R. Sah. That decision was given in
relation to reservation for admission to post-graduate medical courses and the
same cannot be readily applied in the present circumstances where we are dealing
with the examinations conducted by the UPSC. The ultimate aim of 53 Civil
Services aspirants is to qualify for the most coveted services and each of the
services have quotas for reserved classes, the benefits of which are availed by
MRC candidates for preferred service. As highlighted earlier, the benefit
accrued by different candidates who secure admission in a particular
educational institution is of a homogeneous nature. However, the benefits
accruing from successfully qualifying in the UPSC examination are of a varying
nature since some services are coveted more than others.

45. The
order of the CAT is valid to the extent that it relied on the ratio propounded
by this Court in Anurag Patel v. Uttar Pradesh Public Service Commission
(supra.). Even though that decision had in turn relied on the verdict of this
Court in Ritesh R. Sah v. Dr. Y.L.Yamul and Others, (supra.), the latter case
is distinguishable from the present case with respect to the facts in issue.
However, we cannot approve of the conclusions arrived at in the Central
Administrative Tribunal order as it failed to take note of the unique
characteristics of the UPSC examinations.

46.
Reference was also made to R.K. Sabharwal v. State of Punjab, (1995) 2 SCC 745,
this Court had declared that the State shall not count a Reserved Category
candidate selected in the open category against the vacancies in the Reserved
Category. However, by this it could not be inferred that if the candidate
himself wishes to avail a vacancy in the Reserved Category, he shall be
prohibited from doing so.

After
considering the counsels' submissions and deliberations among ourselves, we are
of the view that the ratio in that case is not applicable for the purpose of
the present case. That case was primarily concerned with the Punjab Service of
Engineers in the Irrigation Department of State of Punjab. The decision was
rendered in the context of the posts earmarked for the Scheduled Castes/
Scheduled Tribes and Backward Classes on the roster. It was noted that once such
posts are filled the reservation is complete.

Roster
cannot operate any further and it should be stopped.

Any post
falling vacant in a cadre thereafter, is to be filled from the category reserved
or general due to retirement 55 or removal of a person belonging to the
respective category.

Unlike
the examinations conducted by UPSC which includes 21 different services this
case pertains to a single service and therefore the same cannot be compared
with the examination conducted by UPSC. The examination conducted by UPSC is
very prestigious and the top-most services of this nation are included in this
examination. In this respect, it is obvious that there is fierce competition
amongst the successful candidates as well to secure appointments in the most
preferred services. This judgment is strictly confined to the enabling
provision of Article 16 (4) of the Constitution under which the State
Government has the sole power to decide whether there is a requirement for
reservations in favour of the backward class in the services under the State
Government. However, the present case deals with positions in the various civil
services under the Union Government that are filled through the examination
process conducted by the UPSC. Therefore, the fact-situation in R.K.
Sabharwal's case is clearly distinguishable.

47. The
proviso to Rule 16 (1) and Rule 16 (2) operate in different dimensions and it
is untenable to argue that these provisions are contradictory or inconsistent
with each other.

As
mentioned earlier, in the examination for the year 2005, 32 reserved candidates
(31 OBC candidates and 1 SC candidate) qualified as per the general qualifying
standard [Rule 16 (1)]. These MRC candidates did not avail of any of the
concessions and relaxations in the eligibility criteria at any stage of the
examination, and further they secured enough marks to place them above the
general qualifying standard.

MRC
candidates are entitled to one of the two posts one depending on their
performance in the General list and other depending on their position in the
Reserved List. When MRC candidates are put in the General list on their own
merit they do not automatically relinquish their reserved status. By the
operation of Rule 16 (2), the reserved status of an MRC candidate is protected
so that his/ her better performance does not deny such candidate the chance to
be allotted to a more preferred service. Where, however, an MRC is able to
obtain his preferred post by virtue of his 57 /her ranking in the General List,
he/ she is not counted as a Reserved Candidate and is certainly not counted
amongst the respective reservation quota.

48. We
must also remember that affirmative action measures should be scrutinized as
per the standard of proportionality. This means that the criteria for any form
of differential treatment should bear a rational correlation with a legitimate
governmental objective. In this case a distinction has been made between
Meritorious Reserved Category candidates and relatively lower ranked Reserved
Category candidates. The amended Rule 16(2) only seeks to recognize the
inter-se merit between these two classes of candidates for the purpose of
allocation to the various civil services with due regard for the preferences
indicated by the candidates.

49. With
regard to the specific characteristics of the UPSC examinations we hold that
Reserved Category candidates (belonging to OBC, SC or ST categories among
others) who are selected on merit and placed in the list of general/unre58
served Category candidates can choose to migrate to the respective reserved
categories at the time of allocation of services. Such migration is enabled by
Rule 16 (2) of the Civil Services Examination Rules, which is not inconsistent
with Rule 16 (1) of the same or even the content of Articles 14, 16 (4) and 335
of the Constitution of India.

50. We
sum up our answers-:

i) MRC
candidates who avail the benefit of Rule 16 (2) and adjusted in the reserved
category should be counted as part of the reserved pool for the purpose of
computing the aggregate reservation quotas. The seats vacated by MRC candidates
in the General Pool will be offered to General category candidates.

ii) By
operation of Rule 16 (2), the reserved status of an MRC candidate is protected
so that his/ her better performance does not deny him of the chance to be
allotted to a more preferred service.

59 iii)
The amended Rule 16 (2) only seeks to recognize the inter se merit between two
classes of candidates i.e. a) meritorious reserved category candidates b)
relatively lower ranked reserved category candidates, for the purpose of allocation
to the various Civil Services with due regard for the preferences indicated by
them.

iv) The
reserved category candidates "belonging to OBC, SC/ ST categories"
who are selected on merit and placed in the list of General/Unreserved category
candidates can choose to migrate to the respective reserved category at the
time of allocation of services. Such migration as envisaged by Rule 16 (2) is
not inconsistent with Rule 16 (1) or Articles 14, 16 (4) and 335 of the
Constitution.

51. In
view of the above, the civil appeals are allowed and the judgment of the Madras
High Court is set aside. The writ petitions challenging the validity of Rule
16(2) are dismissed. The validity of Rule 16 of Civil Service Examination Rules
2005 (vide notification dated 4.12.2004) is upheld.